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02/10/95 ROBERT MASON HALL v. STATE

February 10, 1995

ROBERT MASON HALL
v.
STATE



Appeal from Mobile Circuit Court. (CC-90-2203.60 and CC-91-3952.60). Robert Kay, Trial Judge.

Released for Publication May 27, 1995.

Patterson, Judge. All Judges Concur.

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

Robert Mason Hall appeals the circuit court's denial of his Rule 32, Ala.R.Crim.P., petition in which he challenged his 1992 convictions for rape in the second degree and sodomy in the second degree, based on his pleas of guilty, and his subsequent sentences of 25 years' imprisonment on each conviction, those sentences to run concurrently. He appeals, raising one issue.

Hall contends that the trial court was without jurisdiction to accept his guilty pleas. Hall was indicted pursuant to §§ 13A-6-61(a)(1) and 6-63(a)(1), Code of Alabama 1975, for rape in the first degree and for sodomy in the first degree. Section 13A-6-61(a)(1) provides, "A male commits the crime of rape in the first degree if he engages in sexual intercourse with a female by forcible compulsion." Section 13A-6-63(a)(1) mirrors the language of the section quoted above, but puts the offense in terms of deviate sexual behavior (sodomy in the first degree). Pursuant to a plea agreement, the indictment was orally amended to charge rape in the second degree and sodomy in the second degree. Rape in the second degree is defined by § 13A-6-62 as follows:

"(a) A male commits the crime of rape in the second degree if:

"(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.

"(2) He engages in sexual intercourse with a female who is incapable of consent by reason of being mentally defective."

Likewise, § 13A-6-64, which sets out sodomy in the second degree, essentially tracks the language in the statute defining rape in the second degree, making the offensive behavior deviate sexual behavior. Hall pleaded guilty to rape in the second degree and to sodomy in the second degree. However, the transcript from the Rule 32 evidentiary hearing shows that the victim was over the age of 16.

An indictment can not be amended to charge an offense that was not encompassed in the original indictment. See Ross v. State, 529 So. 2d 1074 (Ala. Cr. App. 1988). In this case, the indictment was amended to charge second degree rape and second degree sodomy. As a matter of law, rape in the second degree and sodomy in the second degree as defined by §§ 13A-6-62(a)(1) and -6-64(a)(1), respectively, are not lesser included offenses of their first degree counterparts when the victim is over 16 years of age.

In this case, the indictment could not be amended to charge second degree sodomy or second degree rape. The trial court was without jurisdiction to accept a guilty plea from Hall on an offense for which he had not been indicted. A jurisdictional defect is not waived by a plea of guilty. See Glover v. State, [Ms. CR-93-0363, September 9, 1994) ___ So. 2d ___ (Ala. Cr. App. 1994). Accordingly, the circuit court erred in denying Hall's Rule 32 petition, and the judgment is due to be reversed and the case remanded.

REVERSED AND REMANDED. ALL ...


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